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1
LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY- SEVENTH
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 7, A. D.
1993
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 11, A. D.
1994
VOLUME LXIX
Part II

1
LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY-SEVENTH
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 7, A.D.
1993
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 11, A.D.
1994
VOLUME LXIX
Part II
1
CHAPTER 259
FORMERLY
SENATE BILL NO. 311
AN ACT TO AMEND CHAPTER 15 OF TITLE 6 OF THE DELAWARE CODE RELATING TO THE
REGISTRATION AND REGULATION OF REGISTERED LIMITED LIABILITY PARTNERSHIPS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE
(three-fifths of all members elected to each House thereof concurring
therein):
Section 1. Amend § 1502(0, Chapter 15, Title 6 of the Delaware Code by
(a) deleting the word "and" immediately following the reference to "1545", and
substituting therefor the punctuation mark "," and (b) adding the words "and
1549" immediately following the reference to "1546".
Section 2. Amend § 1515(b), Chapter 15, Title 6 of the Delaware Code by
(a) deleting the words "for debts and obligations of the partnership"
immediately before the words "arising from negligence", and (b) adding
immediately following the words "registered limited liability partnership is
not liable", the words ", either directly or indirectly, by way of
indemnification, contribution, assessment or otherwise, for debts, obligations
and liabilities of or chargeable to the partnership,", and (c) adding
immediately following the word "misconduct", the words ", whether
characterized as tort, contract or otherwise,".
Section 3. Amend § 1544(a), Chapter 15, Title 6 of the Delaware Code by
(a) deleting (i) the words "the address of its principal office; if the
partnership's principal office is not located in this state,", (ii) the words
"In this state which the partnership shall be required to maintain", and (iii)
immediately preceding the words "that the partnership thereby" the word "and",
and (b) adding (i) immediately following the words "service of process" the
words "required to be maintained by § 1549 of this title", (ii) immediately
following the words "as the case may be, as a registered limited liability
partnership" the words "; and any other matters the partnership determines to
include therein", and (iii) two new sentences Immediately following the last
sentence of § 1544(a) reading as follows: "A partnership becomes a registered
limited liability partnership at the time of the filing of the initial
application in the Office of the Secretary of State or at any later date or
time specified in the application if, in either case, there has been
substantial compliance with the requirements of this chapter. A partnership
continues as a registered limited liability partnership if there has been
substantial compliance with the requirements of this chapter."
Section 4. Amend § 1544(f), Chapter 15, Title 6 of the Delaware Code by
deleting the current text of subsection "(f)" and substituting in lieu thereof
the following: "If a person is included in the number of partners of a
registered limited liability partnership set forth in an application, a
renewal application or a certificate of amendment of an application or a
renewal application, the Inclusion of such person shall not be admissible as
evidence in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, for the purpose of determining whether such
person is liable as a partner of such registered limited liability partner-ship.
The status of a partnership as a registered limited liability
partnership and the liability of a partner of such registered limited
liability partnership shall not be adversely affected if the number of
partners stated in an application, a renewal application or a certificate of
amendment of an application or a renewal application is erroneously stated
provided that the application, renewal application or certificate of amendment
of an application or a renewal application was filed in good faith."
Section 5. Amend § 1544, Chapter 15, Title 6 of the Delaware Code by
adding a new § 1544(h) reading as follows:
"(h) The filing of an application or a renewal application in the Office
of the Secretary of State shall make it unnecessary to file any other
documents under Chapter 31 of this title."
Section 6. Amend § 1545 by adding the words "or the designation 'LLP'"
following the words "or the abbreviation 'L.L.P.'", and by inserting the
511
512 Chapter 259
following new sentence at the end of § 1545: "The name of a registered
limited liability partnership must be such as to distinguish it upon the
records in the Office of the Secretary of State from the name of any
corporation, limited partnership, limited liability company, business trust or
registered limited liability partnership reserved, registered, formed or
organized under the laws of the State of Delaware or qualified to do business
or registered as a foreign corporation, foreign limited partnership or foreign
limited liability company in the State of Delaware; provided, however, that a
registered limited liability partnership may register under any name which is
not such as to distinguish it upon the records in the Office of the Secretary
of State from the name of any domestic or foreign corporation, limited
partnership, limited liability company, business trust or registered limited
liability partnership reserved, registered, formed or organized under the laws
of the State of Delaware with the written consent of the other corporation,
limited partnership, limited liability company, business trust or registered
limited liability partnership, which written consent shall be filed with the
Secretary of State."
Section 7. Amend Chapter 15, Title 6 of the Delaware Code by adding
thereto a new section to be designated as "§ 1548" reading as follows:
"§ 1548. Reservation of Name.
(a) The exclusive right to the use of a name of a registered limited
liability partnership may be reserved by:
Any person intending to become a registered limited liability
partnership under this chapter and to adopt that name; and
Any registered limited liability partnership which proposes to
change its name.
(b) The reservation of a specified name shall be made by filing with
the Secretary of State an application, executed by the applicant, specifying
the name to be reserved and the name and address of the applicant. If the
Secretary of State finds that the name is available for use by a registered
limited liability partnership, he shall reserve the name for the exclusive use
of the applicant for a period of 120 days. Once having so reserved a name,
the same applicant may again reserve the same name for successive 120 day
periods. The right to the exclusive use of a reserved name may be transferred
to any other person by filing in the Office of the Secretary of State a notice
of the transfer, executed by the applicant for whom the name was reserved,
specifying the name to be transferred and the name and address of the
transferee. The reservation of a specified name may be canceled by filing
with the Secretary of State a notice of cancellation, executed by the
applicant or transferee, specifying the name reservation to be canceled and
the name and address of the applicant or transferee.
(c) A fee in the amount of $75 shall be paid to the Secretary of State
for the use of the State of Delaware upon receipt for filing of an application
for reservation of name, an application for renewal of reservation or a notice
of transfer or cancellation pursuant to this § 1548."
Section 8. Amend Chapter 15, Title 6 of the Delaware Code by adding
thereto a new section to be designated as "§ 1549" reading as follows:
"§ 1549. Registered Office; Registered Agent.
(a) Each registered limited liability partnership shall have and
maintain in the State of Delaware:
A registered office, which may but need not be a place of its
business in the State of Delaware; and
A registered agent for service of process on the registered
limited liability partnership, which agent may be either an individual
resident of the State of Delaware whose business office is identical with the
registered limited liability partnership's registered office, or a domestic
corporation, or a foreign corporation authorized to do business in the State
of Delaware having a business office identical with such registered office, or
the registered limited liability partnership itself.
Chapter 259 513
A registered agent may change the address of the registered office
of the registered limited liability partnerships for which he is registered
agent to another address in the State of Delaware by paying a fee in the
amount of $50, and a further fee in the amount of $2 for each registered
limited liability partnership affected thereby, to the Secretary of State for
the use of the State of Delaware and filing with the Secretary of State a
certificate, executed by such registered agent, setting forth the names of all
the registered limited liability partnerships represented by such registered
agent, and the address at which such registered agent has maintained the
registered office for each of such registered limited liability partnerships,
and further certifying to the new address to which such registered office will
be changed on a given day, and at which new address such registered agent will
thereafter maintain the registered office for each of the registered limited
liability partnerships recited in the certificate. Upon the filing of such
certificate, the Secretary of State shall furnish to the registered agent a
certified copy of the same under his hand and seal of office, and thereafter,
or until further change of address, as authorized by law, the registered
office in the State of Delaware of each of the registered limited liability
partnerships recited in the certificate shall be located at the new address of
the registered agent thereof as given in the certificate. In the event of a
change of name of any person acting as a registered agent of a registered
limited liability partnership, such registered agent shall file with the
Secretary of State a certificate, executed by such registered agent, setting
forth the new name of such registered agent, the name of such registered agent
before it was changed, the names of all the registered limited liability
partnerships represented by such registered agent, and the address at which
such registered agent has maintained the registered office for each of such
registered limited liability partnerships, and shall pay a fee in the amount
of $50, and a further fee in the amount of $2 for each registered limited
liability partnership affected thereby, to the Secretary of State for the use
of the State of Delaware. Upon the filing of such certificate, the Secretary
of State shall furnish to the registered agent a certified copy of the same
under his hand and seal of office. Filing a certificate under this section
shall be deemed to be an amendment of the application or renewal application,
as the case may be, of each registered limited liability partnership affected
thereby, and each such registered limited liability partnership shall not be
required to take any further action with respect thereto, to amend its
application or renewal application, as the case may be, pursuant to § 1550 of
this title. Any registered agent filing a certificate under this section
shall promptly, upon such filing, deliver a copy of any such certificate to
each registered limited liability partnership affected thereby.
The registered agent of 1 or more registered limited liability
partnerships may resign and appoint a successor registered agent by paying a
fee in the amount of $50, and a further fee the amount of $2 for each
registered limited liability partnership affected thereby, to the Secretary of
State for the use of the State of Delaware .and filing a certificate with the
Secretary of State, stating that it resigns and the name and address of the
successor registered agent. There shall be attached to such certificate a
statement executed by each affected registered limited liability partnership
ratifying and approving such change of registered agent. Upon such filing,
the successor registered agent shall become the registered agent of such regis-tered
limited liability partnerships as have ratified and approved such
substitution and the successor registered agent's address, as stated in such
certificate, shall become the address of each such registered limited
liability partnership's registered office in the State of Delaware. The
Secretary of State shall furnish to the successor registered agent a certified
copy of the certificate of resignation. Filing of such certificate of
resignation shall be deemed to be an amendment of the application or renewal
application, as the case may be, of each registered limited liability
partnership affected thereby, and each such registered limited liability
partnership shall not be required to take any further action with respect
thereto, to amend its application or renewal application, as the case may be,
pursuant to § 1550 of this title.
The registered agent of a registered limited liability partnership
may resign without appointing a successor registered agent by paying a fee in
the amount of $10 to the Secretary of State for the use of the State of
Delaware and filing a certificate with the Secretary of State stating that it
resigns as registered agent for the registered limited liability partnership
Identified in the certificate, but such resignation shall not become effective
until 120 days after the certificate is filed. There shall be attached to
514 Chapter 259
such certificate an affidavit of such registered agent, if an individual, or
the president, a vice-president or the secretary thereof if a corporation,
that at least 30 days prior to and on or about the date of the filing of said
certificate, notices were sent by certified or registered mail to the
registered limited liability partnership for which such registered agent is
resigning as registered agent, at the principal office thereof within or
outside the State of Delaware, if known to such registered agent or, if not,
to the last known address of the attorney or other individual at whose request
such registered agent was appointed for such registered limited liability
partnership, of the resignation of such registered agent. After receipt of
the notice of the resignation of its registered agent, the registered limited
liability partnership for which such registered agent was acting shall obtain
and designate a new registered agent, to take the place of the registered
agent so resigning. If such registered limited liability partnership fails to
obtain and designate a new registered agent as aforesaid prior to the
expiration of the period of 120 days after the filing by the registered agent
of the certificate of resignation, the application or renewal application of
such registered limited liability partnership shall be deemed to be canceled."
Section 9. Amend Chapter 15, Title 6 of the Delaware Code by adding
thereto a new section to be designated as "§ 1550" reading as follows:
"§ 1550. Amendment of Application or Renewal Application.
(a) An application or a renewal application is amended by filing a
certificate of amendment thereto in the Office of the Secretary of State. The
certificate of amendment of an application or a renewal application shall set
forth:
The name of the registered limited liability partnership; and
The amendment to the application or renewal application.
(b) No later than 90 days after the happening of any of the following
events an amendment to an application or a renewal application reflecting the
occurrence of the event or events shall be executed and filed by a majority in
interest of the partners or by one or more partners authorized to execute an
amendment to the application or renewal application:
A change in the name of the registered limited liability
partnership; or
Except as provided in § 1549(b) and (c) of this title, a change
in the address of the registered office or a change in the name or address of
the registered agent of the registered limited liability partnership.
(c) No amendment of an application or a renewal application is required
as a result of a change after the application or renewal application is filed
in the number of partners of the registered limited liability partnership or
in the business in which the registered limited liability partnership
engages. The status of a partnership as a registered limited liability
partnership shall not be affected by changes after the filing of an
application or a renewal application in the information stated in the applica-tion
or renewal application.
(d) An application or a renewal application may be amended at any time
for any other proper purpose as determined by a majority in interest of the
partners of the registered limited liability partnership or by one or more
partners authorized to amend the application or renewal application.
(e) Unless otherwise provided in this title or in the certificate of
amendment of an application or a renewal application or in a withdrawal notice
of an application or a renewal application, a certificate of amendment of an
application or a renewal application or a withdrawal notice of an application
or a renewal application shall be effective at the time of its filing with the
Secretary of State.
(f) A fee in the amount of $100 shall be paid to the Secretary of State
for the use of the State of Delaware upon the receipt for filing of a
certificate of amendment of an application or a renewal application or a
withdrawal notice of an application or a renewal application."
Chapter 259 515
Section 10. Amend Chapter 15, Title 6 of the Delaware Code by adding
thereto a new section to be designated as "§ 1551" reading as follows:
"§ 1551. Notice.
The fact that an application, a renewal application or a certificate of
amendment of an application or a renewal application is on file in the Office
of the Secretary of State is notice that the partnership is a registered
limited liability partnership and is notice of all other facts set forth in
the application, renewal application or certificate of amendment of an
application or a renewal application."
Section 11. Amend Chapter 15, Title 6 of the Delaware Code by adding
thereto a new section to be designated as "§ 1552" reading as follows:
1 1552. Procedures Concerning Filing of Documents and Issuance of Good
Standing Certificates.
(a) The original signed copy of the application, renewal application,
certificate of amendment of an application or a renewal application, and of
any withdrawal notice of an application or a renewal application, shall be
delivered to the Secretary of State. A person who executes an application, a
renewal application, a certificate of amendment of an application or a renewal
application, or any withdrawal notice of an application or a renewal
application, as an agent or fiduciary, need not exhibit evidence of his
authority as a prerequisite to filing. Any signature on any application,
renewal application, certificate of amendment of an application or a renewal
application, or any withdrawal notice of an application or a renewal
application, filed with the Secretary of State under any provision of this
chapter may be a facsimile. Unless the Secretary of State finds that any
application, renewal application, certificate of amendment of an application
or a renewal application, or any withdrawal notice of an application or a
renewal application, does not conform to law, upon receipt of all filing fees
required by law he shall:
Certify that the application, renewal application, certificate
of amendment of an application or a renewal application, or any with-drawal
notice of an application or a renewal application, has been
filed in his office by endorsing upon the application, renewal
application, or certificate of amendment of an application or a renewal
application, or any withdrawal notice of an application or a renewal
application, the word "Filed", and the date and hour of the filing.
This endorsement is conclusive of the date and time of its filing in
the absence of actual fraud;
File and index the endorsed application, renewal application,
certificate of amendment of an application or a renewal application, or
any written withdrawal notice of an application or a renewal applica-tion;
and
Prepare and return to the person who filed it or his repre-sentative
a copy of the original signed instrument, similarly endorsed,
and shall certify such copy as a true copy of the original signed
instrument.
A fee in the amount of $20 shall be paid to the Secretary of State
for use of the State of Delaware for a certified copy of any paper on file as
provided for by this chapter, and a fee in the amount of $5 for the first page
and $1 for each additional page shall be paid to the Secretary of State for
the use of the State of Delaware for each page copied.
The Secretary of State may issue certificates of good standing
relating to registered limited liability partnerships for a fee in the amount
of $20 for the use of the State of Delaware, except that for issuing a
certificate of good standing that recites all of the registered limited
liability partnership's filings with the Secretary of State, a fee of $100
shall be paid to the Secretary of State for the use of the State of Delaware."
Section 12. Amend Chapter 15, Title 6 of the Delaware Code by adding
thereto a new section to be designated as "§ 1553" reading as follows:
516 Chapter 259
1553. Limited Partnerships as Registered Limited Liability Limited
Partnerships.
A domestic limited partnership may become a registered limited liability
limited partnership by complying with the applicable provisions of the
Delaware Revised Uniform Limited Partnership Act (6 Del. C. § 17-101, gi
Section 13. This Act shall become effective on August 1, 1994.
Approved June 27, 1994.
CHAPTER 260
FORMERLY
SENATE BILL NO. 312
AN ACT TO AMEND CHAPTER 18, TITLE 6 OF THE DELAWARE CODE RELATING TO THE
CREATION, REGULATION, OPERATION AND DISSOLUTION OF DOMESTIC LIMITED
LIABILITY COMPANIES AND THE REGISTRATION AND REGULATION OF FOREIGN LIMITED
LIABILITY COMPANIES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE
(three-fifths of all members elected to each House thereof concurring
therein):
Section 1. Amend §48-101, Chapter 18, Title 6 of the Delaware Code by
redesignating paragraphs "(5)" through "(13)", as paragraphs "(6)" through
"(14)", and by adding a new paragraph designated as paragraph "(5)" in its
appropriate numerical order reading as follows:
"(5) 'Knowledge means a person's actual knowledge of a fact, rather
than the person's constructive knowledge of the fact."
Section 2. Amend §18-102(3), Chapter 18, Title 6 of the Delaware Code by
adding at three places in the subsection immediately following the words
"business trust", the words ", registered limited liability partnership".
Section 3. Amend §18-103(b), Chapter 18, Title 6 of the Delaware Code by
deleting the words "together with a duplicate copy, which may be either a
signed or conformed copy," in the three places where such words are contained
in §18-103(b), and the last sentence of §18-103(b) in its entirety, and by
adding a new sentence immediately following the last sentence of §18-103(b)
reading as follows:
"Unless the Secretary of State finds that any application, notice of
transfer, or notice of cancellation filed with the Secretary of State as
required by this subsection does not conform to law, upon receipt of all
filing fees required by law he shall prepare and return to the person who
filed such instrument a copy of the filed instrument with a notation
thereon of the action taken by the Secretary of State."
Section 4. Amend §18-107, Chapter 18, Title 6 of the Delaware Code by
deleting the word "specific" contained therein, and by adding the punctuation
mark "," immediately following the words and transact other business with".
Section 5. Amend Subchapter I, Chapter 18, Title 6 of the Delaware Code by
adding thereto a new section to be designated as "§18-110" to read as follows:
18-110. Contested Matters Relating to Managers; Contested Votes.
(a) Upon application of any member or manager, the Court of Chancery
may hear and determine the validity of any admission, election, appointment
or withdrawal of a manager of a limited liability company, and the right of
any person to be a manager of a limited liability company, and, in case the
right to serve as a manager is claimed by more than 1 person, may determine
the person or persons entitled to serve as managers; and to that end make
such order or decree in any such case as may be just and proper, with power
to enforce the production of any books, papers and records of the limited
liability company relating to the issue. In any such application, service
of copies of the application upon the registered agent of the limited
liability company shall be deemed to be service upon the limited liability
company and upon the person or persons whose right to serve as a manager is
contested and upon the person or persons, if any, claiming to be a manager
or claiming the right to be a manager; and the registered agent shall
forward immediately a copy of the application to the limited liability
company and to the person or persons whose right to serve as a manager is
contested and to the person or persons, if any, claiming to be a manager or
the right to be a manager, in a postpaid, sealed, registered letter
addressed to such limited liability company and such person or persons at
their post-office addresses last known to the registered agent or furnished
to the registered agent by the applicant member or manager. The Court may
517
make such order respecting further or other notice of such application as
it deems proper under these circumstances.
Upon application of any member or manager, the Court of Chancery
may hear and determine the result of any vote of members or managers upon
matters as to which the members or managers of the limited liability
company, or any class or group of members or managers, have the right to
vote pursuant to the limited liability company agreement or other agreement
or this chapter (other than the admission, election, appointment or
withdrawal of managers). Service of the application upon the registered
agent of the limited liability company shall be deemed to be service upon
the limited liability company, and no other party need be joined in order
for the Court to adjudicate the result of the vote. The Court may make
such order respecting further or other notice of such application as it
deems proper under these circumstances.
Nothing herein contained limits or affects the right to serve
process in any other manner now or hereafter provided by law. This section
is an extension of and not a limitation upon the right otherwise existing
of service of legal process upon nonresidents."
Section 6. Amend Subchapter I, Chapter 18, Title 6 of the Delaware Code by
adding thereto a new section to be designated as 118-111" to read as follows:
118-111. Interpretation and Enforcement of Limited Liability Company
Agreement.
Any action to interpret, apply or enforce the provisions of a limited
liability company agreement, or the duties, obligations or liabilities of a
limited liability company to the members or managers of the limited
liability company, or the duties, obligations or liabilities among members
or managers and of members or managers to the limited liability company, or
the rights or powers of, or restrictions on, the limited liability company,
members or managers, may be brought in the Court of Chancery."
Section 7. Amend §18-201(a), Chapter 18, Title 6 of the Delaware Code by
adding immediately after the punctuation mark ":" appearing at the end of
subsection 18-201(a)(2) the word "and", by deleting subsection 18-201(a)(3) in
its entirety, and by redesignating paragraph "(4)" as paragraph "(3)".
Section 8. Amend §18-206(a), Chapter 18, Title 6 of the Delaware Code by
adding after the words "certificates of amendment", the words ", correction,
termination of a merger or consolidation".
Section 9. Amend §18-206(a)(1), Chapter 18, Title 6 of the Delaware Code
by adding after the words "certificate of amendment," the words "the
certificate of correction, the certificate of termination of a merger or
consolidation,".
Section 10. Amend §18-206(b), Chapter 18, Title 6 of the Delaware Code by
adding immediately following "(or judicial decree of amendment)", the words
", certificate of correction", and by adding the following sentence at the end
of said subsection:
"Upon the filing of a certificate of termination of a merger or
consolidation, the certificate of merger or consolidation identified in the
certificate of termination of a merger or consolidation is terminated."
Section 11. Amend §18-206(c), Chapter 18, Title 6 of the Delaware Code by
adding immediately following the words "certificate of amendment," the words
"a certificate of correction, a certificate of termination of a merger or
consolidation,".
Section 12. Amend §18-209(a), Chapter 18, Title 6 of the Delaware Code by
adding after the word "general", the words "(including a registered limited
liability partnership)".
Section 13. Amend §18-209(d), Chapter 18, Title 6 of the Delaware Code by
adding the following sentence at the end of said subsection:
"If a certificate of merger or consolidation provides for a future
effective date or time and if an agreement of merger or consolidation is
518 Chapter 260
Chapter 260
terminated or amended to change the future effective date or time as
permitted by §18-209(b) of this chapter prior to the future effective date
or time, the certificate of merger or consolidation shall be terminated by
the filing of a certificate of termination of a merger or consolidation
which shall identify the certificate of merger or consolidation and the
agreement of merger or consolidation which has been terminated or amended
and shall state that the agreement of merger or consolidation has been
terminated or amended."
Section 14. Amend Subchapter II, Chapter 18, Title 6 of the Delaware Code
by adding a new section to be designated as "§18-210" to read as follows:
"§18-210. Contractual Appraisal Rights.
A limited liability company agreement or an agreement of merger or
consolidation may provide that contractual appraisal rights with respect to
a limited liability company interest or another interest in a limited
liability company shall be available for any class or group of members or
limited liability company interests in connection with any amendment of a
limited liability company agreement, any merger or consolidation in which
the limited liability company is a constituent party to the merger or
consolidation, or the sale of all or substantially all of the limited
liability company's assets. The Court of Chancery shall have jurisdiction
to hear and determine any matter relating to any such appraisal rights."
Section 15. Amend Subchapter II, Chapter 18, Title 6 of the Delaware Code
by adding thereto a new section to be designated as "§18-211" to read as
follows:
"§18-211. Certificate of Correction.
Whenever any certificate authorized to be filed with the Office of the
Secretary of State under any provision of this chapter has been so filed
and is an inaccurate record of the action therein referred to, or was
defectively or erroneously executed, such certificate may be corrected by
filing with the Office of the Secretary of State a certificate of
correction of such certificate. The certificate of correction shall
specify the inaccuracy or defect to be corrected, shall set forth the
portion of the certificate in corrected form and shall be executed and
filed as required by this chapter. The corrected certificate shall be
effective as of the date the original certificate was filed, except as to
those persons who are substantially and adversely affected by the
correction, and as to those persons the corrected certificate shall be
effective from the filing date."
Section 16. Amend §18-301(a), Chapter 18, Title 6 of the Delaware Code by
deleting the words "acquiring a limited liability company interest".
Section 17. Amend §18-301(b), Chapter 18, Title 6 of the Delaware Code by
deleting the words "acquiring a limited liability company interest".
Section 18. Amend §18-301(b)(1), Chapter 18, Title 6 of the Delaware Code
by deleting the words "a person acquiring a limited liability company interest
directly from the limited liability company,", and by substituting in lieu
thereof the words "a person who is not an assignee of a limited liability
company interest, including a person acquiring a limited liability company
interest directly from the limited liability company and a person to be
admitted as a member of the limited liability company without acquiring a
limited liability company Interest in the limited liability company," and by
deleting the word "or" appearing at the end of said subsection.
Section 19. Amend §18-301(b)(2), Chapter 18, Title 6 of the Delaware Code
by deleting the period appearing at the end of said subsection and by
substituting in lieu thereof "; or".
Section 20. Amend §18-301(b), Chapter 18, Title 6 of the Delaware Code by
adding a new paragraph to said subsection to be designated as paragraph "(3)"
to read as follows:
"(3) Unless otherwise provided in an agreement of merger or
consolidation or a limited liability company agreement, in the case of a
person acquiring a limited liability company interest in a surviving or
519
520 Chapter 260
resulting limited liability company pursuant to a merger or consolidation
approved in accordance with §18-209(b) of this chapter, at the time
provided in and upon compliance with the limited liability company
agreement of the surviving or resulting limited liability company."
Section 21. Amend §18-301(c), Chapter 18, Title 6 of the Delaware Code by
adding at the end of said subsection a new sentence reading: "Unless
otherwise provided in a limited liability company agreement, a person may be
admitted to a limited liability company as a member of the limited liability
company without acquiring a limited liability company interest in the limited
liability company.".
Section 22. Amend §18-303, Chapter 18, Title 6 of the Delaware Code by
designating the existing paragraph of said section as "(a)", by deleting the
":" as it currently appears therein and replacing such punctuation mark with
the punctuation mark ",", and by adding a new subsection to §18-303 to be
designated as subsection "(b)" to read as follows:
"(b) Notwithstanding the provisions of §18-303(a) of this chapter,
under a limited liability company agreement or under another agreement, a
member or manager may agree to be obligated personally for any or all of
the debts, obligations and liabilities of the limited liability company."
Section 23. Amend §18-401, Chapter 18, Title 6 of the Delaware Code by
deleting "§18-101(9)" and by substituting in lieu thereof 118-101(10)".
Section 24. Amend §18-402, Chapter 18, Title 6 of the Delaware Code by
adding a new sentence immediately following the last sentence of §18-402
reading as follows:
"Unless otherwise provided in a limited liability company agreement,
each member and manager has the authority to bind the limited liability
company."
Section 25. Amend Subchapter IV, Chapter 18, Title 6 of the Delaware Code
by adding thereto a new section to be designated as "§18-407" to read as
follows:
"§18-407. Delegation of Rights and Powers to Manage.
Unless otherwise provided in the limited liability company agreement, a
member or manager of a limited liability company has the power and
authority to delegate to one or more other persons the member's or
manager's, as the case may be, rights and powers to manage and control the
business and affairs of the limited liability company, including to
delegate to agents and employees of a member or manager or the limited
liability company, and to delegate by a management agreement or another
agreement with, or otherwise to, other persons. Unless otherwise provided
in the limited liability company agreement, such delegation by a member or
manager of a limited liability company shall not cause the member or
manager to cease to be a member or manager, as the case may be, of the
limited liability company."
Section 26. Amend Subchapter V, Chapter 18, Title 6 of the Delaware Code
by adding thereto a new section to be destgnated as "§18-505" to read as
follows:
"§18-505. Defense of Usury Not Available.
No obligation of a member or manager of a limited liability company to
the limited liability company arising under the limited liability company
agreement or a separate agreement or writing, and no note, instrument or
other writing evidencing any such obligation of a member or manager, shall
be subject to the defense of usury, and no member or manager shall
interpose the defense of usury with respect to any such obligation in any
action."
Section 27. Amend §18-603, Chapter 18, Title 6 of the Delaware Code by
deleting from the last sentence of said subsection the words "set forth in
this chapter", and by substituting in lieu thereof "under applicable law".
Chapter 260 521
Section 28. Amend §18-605, Chapter 18, Title 6 of the Delaware Code by
adding a new sentence to the end of said section to read as follows:
"Except as provided in the limited liability company agreement, a
member may be compelled to accept a distribution of any asset in kind from
a limited liability company to the extent that the percentage of the asset
distributed to him is equal to a percentage of that asset which is equal to
the percentage in which he shares in distributions from the limited
liability company."
Section 29. Amend §18-607(b), Chapter 18, Title 6 of the Delaware Code by
deleting from the last sentence of said subsection the words "a limited
liability company", and by substituting in lieu thereof the word "an".
Section 30. Amend §18-702(b)(1), Chapter 18, Title 6 of the Delaware Code
by adding immediately following the word "assignment", the words "of a limited
liability company interest".
Section 31. Amend §18-702, Chapter 18, Title 6 of the Delaware Code by
adding a new subsection to be designated as "(e)" to read as follows:
"(e) Unless otherwise provided In the limited liability company
agreement, a limited liability company may acquire, by purchase, redemption
or otherwise, any limited liability company interest or other interest of a
member or manager in the limited liability company. Unless otherwise
provided in the limited liability company agreement, any such interest so
acquired by the limited liability company shall be deemed canceled."
Section 32. Amend §18-801(1), Chapter 18, Title 6 of the Delaware Code by
deleting said subsection in its entirety and by substituting in lieu thereof
the following:
"(1) At the time specified in a limited liability company agreement,
which limited liability company agreement may include a provision providing
for the perpetual existence of the limited liability company, or thirty
(30) years from the date of the formation of the limited liability company
if no such time Is set forth in the limited liability company agreement or
the limited liability company agreement does not provide for the perpetual
existence of the limited liability company;"
Section 33. Amend §18-804(a)(1), Chapter 18, Title 6 of the Delaware Code
by adding immediately following the words "distributions to members", the
words "and former members".
Section 34. Amend §18-903(b), Chapter 18, Title 6 of the Delaware Code by
deleting §18-903(b) in its entirety and substituting in lieu thereof the
following:
"(b) The Secretary of State shall prepare and return to the person who
filed the application or his representative a copy of the original signed
application, similarly endorsed, and shall certify such copy as a true copy
of the original signed application."
Section 35. Amend §18-1101(c), Chapter 18, Title 6 of the Delaware Code by
adding the words "or other person" after the word "manager" and before the
words "has duties", by adding the words "or other person" after the words "any
such member or manager" and before the words "acting under", by adding the
words "or other person's" after the words "for the member's or manager's" and
before the words "good faith reliance", and by adding the words "or other
person's" after the words "and (2) the member's or manager's" and before the
words "duties and liabilities".
Section 36. Amend §18-1105(a)(2), Chapter 18, Title 6 of the Delaware Code
by deleting "$10", and by substituting in lieu thereof "$2.50".
Section 37. Amend §18-1105(a)(3), Chapter 18, Title 6 of the Delaware Code
by deleting the word "or" appearing after the words "under §18-209 of this
chapter", and by substituting in lieu thereof a ",", and by adding after the
words "under §18-208 of this chapter," the words "a certificate of termination
of a merger or consolidation under §18-209(d) of this chapter, a certificate
of correction under §18-211 of this chapter or a certificate of restoration
under §18-1107(1) of this chapter,".
522
Section 38. Amend §18-1107(h), Chapter 18, Title 6 of the Delaware Code by
deleting said subsection in its entirety and by substituting in lieu thereof
the following:
"(h) A domestic limited liability company or foreign limited
liability company that neglects, refuses or fails to pay the annual tax
when due shall cease to be in good standing as a domestic limited liability
company or registered as a foreign limited liability company in the State
of Delaware."
Section 39. Amend §18-1107(1), Chapter 18, Title 6 of the Delaware Code by
adding at the end of said subsection the following new sentence:
"A fee as set forth in §18-1105(a)(3) of this title shall be paid at
the time of the filing of any such certificate."
Section 40. This Act shall become effective on August 1, 1994.
Approved June 27, 1994.
CHAPTER 261
FORMERLY
SENATE BILL NO. 323
AN ACT TO AMEND CHAPTER 1, TITLE 8, SECTION 145, OF THE DELAWARE CODE,
RELATING TO INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS OF
DELAWARE CORPORATIONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-Thirds
of all members elected to each house of the General Assembly concurring
therein):
Section 1. Amend Section 145(d), Chapter 1, Title 8, Delaware Code, by
deleting the second sentence thereof in its entirety and inserting in lieu
thereof as follows:
Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders."
Section 2. Amend Section 145, Chapter 1, Title 8, Delaware Code, by
adding new subsection (k) as follows:
"(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees)."
Section 3. This Act shall become effective July 1, 1994, and shall not
apply to suits pending as of July 1, 1994.
Approved .June 27, 1994.
523
CHAPTER 262
FORMERLY
SENATE BILL NO. 324
AN ACT TO AMEND CHAPTER 1, TITLE 8, SECTION 262, OF THE DELAWARE CODE,
RELATING TO APPRAISAL RIGHTS UNDER THE GENERAL CORPORATION LAW.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-Thirds
of all members elected to each house of the General Assembly concurring
therein):
Section 1. Amend Section 262(a), Chapter 1, Title 8, Delaware Code, by
deleting the "." at the end of the last sentence thereof and adding the
following thereto:
and the words 'depository receipt' mean a receipt or other
Instrument Issued by a depository representing an interest in one or
more shares, or fractions thereof, solely of stock of a corporation,
which stock is deposited with the depository."
Section 2. Amend Section 262(b)(1), Chapter 1, Title 8, Delaware Code,
by deleting the word "which" following the words "class or series of stock"
and Inserting in lieu thereof the following: ", which stock, or depository
receipts in respect thereof".
Section 3. Amend Section 262(b)(1) Chapter 1, Title 8, Delaware Code,
by deleting the word "stockholders" appearing in clause (ii) thereof and
inserting in lieu thereof the word "holders".
Section 4. Amend Section 262(b)(2)a., Chapter 1, Title 8, Delaware
Code, by deleting the ";" at the end thereof and adding thereto the
following: ", or depository receipts in respect thereof;".
Section 5. Amend Section 262(b)(2)b., Chapter 1, Title 8, Delaware
Code, by deleting the word "which" following the word "corporation" and
Inserting In lieu thereof the following: ", or depository receipts in respect
thereof, which shares of stock or depository receipts".
Section 6. Amend Section 262(b)(2)b., Chapter 1, Title 8, Delaware
Code, by deleting the word "stockholders" at the end thereof and inserting in
lieu thereof the word "holders".
Section 7. Amend Section 262(b)(2)c., Chapter 1,
Code, by deleting the words "of the corporations" and
thereof the words "or fractional depository receipts".
Section a. Amend Section 262(b)(2)d., Chapter 1,
Code, by inserting the following immediately after the
stock": ", depository receipts".
Section 9. Amend Section 262(b)(2)d., Chapter 1,
Code, by inserting the following immediately after the
shares": "or fractional depository receipts".
Section 10. This Act shall become effective July 1, 1994, and shall
apply only with respect to mergers or consolidations consummated pursuant to
an agreement of merger or consolidation entered into after July 1, 1994.
Approved June 27, 1994.
Title 8, Delaware
inserting in lieu
Title 8. Delaware
words "shares of
Title 8, Delaware
words "fractional
524
CHAPTER 263
FORMERLY
SENATE BILL NO. 326
AN ACT TO AMEND CHAPTER 1, TITLE 8, SECTION 218, DELAWARE CODE, RELATING TO
VOTING TRUSTS AND OTHER VOTING AGREEMENTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-Thirds
of all members elected to each house of the General Assembly concurring
therein):
Section I. Amend Section 218(a), Chapter 1, Title 8, Delaware Code, by
deleting the words "One or more stockholders" appearing at the beginning
thereof and inserting in lieu thereof the words "One stockholder or two or
more stockholders".
Section 2. Amend Section 218(a), Chapter 1, Title 8, Delaware Code, by
deleting the clause "not exceeding 10 years," appearing in the first sentence
thereof.
Section 3. Amend Section 218(b), Chapter 1, Title 8, Delaware Code, by
deleting such subsection in its entirety and inserting in lieu thereof the
following: "(b) Any amendment to a voting trust agreement shall be made by a
written agreement, a copy of which shall be filed in the registered office of
the corporation in this State."
Section 4. Amend Section 218(c), Chapter 1, Title 8, Delaware Code, by
deleting the second sentence thereof in its entirety.
Section 5. Amend Section 218, Chapter 1, Title 8, Delaware Code, by
deleting subsection (d) thereof in its entirety.
Section 6. Amend Section 218, Chapter I, Title 8, Delaware Code, by
relettering subsection (e) thereof to become subsection (d) thereof.
Section 7. This Act shall become effective on July 1, 1994, provided
that it shall not apply to any voting trust agreement or voting agreement
entered into, or any amendment thereto entered into, prior to such effective
date unless and only to the extent that (i) such voting trust agreement,
voting agreement or amendment thereto, as the same may have been extended, has
not expired as of such effective date, and (ii) such voting trust agreement,
voting agreement or amendment thereto provides that it will or may last beyond
the 10 year period formerly permitted under § 218 and expressly indicates that
the parties intended to be bound by changes in the law increasing the
permitted duration of such agreement or amendment.
Approved June 27, 1994.
CHAPTER 264
FORMERLY
SENATE BILL NO. 325
AN ACT TO AMEND CHAPTER 1, TITLE 8, SECTION 151, DELAWARE CODE, RELATING TO
CLASSES AND SERIES OF STOCK OF DELAWARE CORPORATIONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-Thirds
of all members elected to each house of the General Assembly concurring
therein):
Section 1, Amend Chapter 1, Title 8, Section 151(a), Delaware Code, by
adding a new sentence immediately prior to the final sentence of subparagraph
(a) reading as follows:
"The term 'facts, as used in this subsection, includes, but is not
limited to, the occurrence of any event, including a determination or
action by any person or body, including the corporation."
Section 2. This Act shall become effective July 1, 1994.
Approved June 27, 1994.
1
525
CHAPTER 265
FORMERLY
SENATE BILL NO. 343
AN ACT TO AMEND CHAPTER 38 OF TITLE 12 OF THE DELAWARE CODE RELATING TO
BUSINESS TRUSTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend §3803, Chapter 38, Title 12 of the Delaware Code by
adding a new subsection (c) thereto to read as follows:
"(c) Except to the extent otherwise provided in the governing
instrument of a business trust, an officer, employee, manager or other
person acting pursuant to Section 3806(b)(7), when acting in such capacity,
shall not be personally liable to any person other than the business trust
or a beneficial owner for any act, omission or obligation of the business
trust or any trustee thereof."
Section 2. Amend §3804(a), Chapter 38, Title 12 of the Delaware Code by
striking said subsection in its entirety and substituting in lieu thereof a
new subsection (a) to read as follows:
"(a) A business trust may sue and be sued, and service of process upon
1 of the trustees shall be sufficient. In furtherance of the foregoing, a
business trust may be sued for debts and other obligations or liabilities
contracted or incurred by the trustees, or by the duly authorized agents of
such trustees, in the performance of their respective duties under the
governing instrument of the business trust, and for any damages to persons
or property resulting from the negligence of such trustees or agents acting
in the performance of such respective duties. The property of a business
trust shall be subject to attachment and execution as if it were a
corporation, subject to §3502 of Title 10. Notwithstanding the foregoing
provisions of this §3804, in the event that the governing instrument of a
business trust, including a business trust which is a registered investment
company under the Investment Company Act of 1940, as amended (15 U.S.C.
§§80a-1 gt leg.), creates one or more series as provided in §3806(b)(2),
and if separate and distinct records are maintained for any such series and
the assets associated with any such series are held and accounted for
separately from the other assets of the business trust, or any other series
thereof, and if the governing instrument so provides, and notice of the
limitation on liabilities of a series as referenced in this sentence is set
forth in the certificate of trust of the business trust, then the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular series shall be enforceable against
the assets of such series only, and not against the assets of the business
trust generally."
Section 3. Amend §3806(a), Chapter 38, Title 12 of the Delaware Code by
striking said subsection in its entirety and substituting in lieu thereof a
new subsection (a) to read as follows:
"(a) Except to the extent otherwise provided in the governing
instrument of a business trust, the business and affairs of a business
trust shall be managed by or under the direction of its trustees. To the
extent provided in the governing instrument of a business trust, any person
(including a beneficial owner) shall be entitled to direct the trustees or
other persons in the management of the business trust. Except to the
extent otherwise provided in the governing instrument of a business trust,
neither the power to give direction to a trustee or other persons nor the
exercise thereof by any person (including a beneficial owner) shall cause
such person to be a trustee."
Section 4. Amend §3806(b), Chapter 38, Title 12 of the Delaware Code by
adding a new paragraph (7) thereto to read as follows:
"(7) May provide for the appointment, election or engagement, either
as agents or independent contractors of the business trust or as delegatees
of the trustees, of officers, employees, managers or other persons who may
manage the business and affairs of the business trust and may have such
titles and such relative rights, powers and duties as the governing
Instrument shall provide. Except to the extent otherwise provided in the
governing instrument of a business trust, the trustees shall choose and
supervise such officers, managers, employees and other persons."
Section 5. Amend §3806, Chapter 38, Title 12 of the Delaware Code by
adding a new subsection (d) thereto to read as follows:
"(d) To the extent that, at law or in equity, an officer, employee,
manager or other person designated pursuant to Section 3806(0(7) has
duties (including fiduciary duties) and liabilities relating thereto to a
business trust, a beneficial owner or a trustee:
Any such officer, employee, manager or other person acting
under a governing Instrument shall not be liable to the business trust,
any beneficial owner or any trustee for such person's good faith
reliance on the provisions of such governing instrument; and
The duties and liabilities of an officer, employee, manager or
other person acting pursuant to Section 3806(b)(7) may be expanded or
restricted by provisions in a governing instrument."
Section 6. Amend §3808(a), Chapter 38, Title 12 of the Delaware Code by
striking said subsection in its entirety and substituting in lieu thereof a
new subsection (a) to read as follows:
"(a) Except to the extent otherwise provided in the governing
Instrument of the business trust, a business trust shall have perpetual
existence, and a business trust may not be terminated or revoked by a
beneficial owner or other person except in accordance with the terms of its
governing instrument."
Section 7. Amend Section 3810, Chapter 38, Title 12 by deleting the title
thereof and substituting In lieu thereof a new title to read as follows:
"Certificate of trust; amendment; restatement; cancellation"
Section 8. Amend Section 3810(c), Chapter 38, Title 12 of the Delaware
Code by redesignating subsection (c) thereof as subsection (d) thereof and by
adding a new subsection (c) thereof to read as follows:
"(c) (1) A certificate of trust may be restated by integrating into a
single instrument all of the provisions of the certificate of trust which
are then in effect and operative as a result of there having been
theretofore filed one or more certificates of amendment pursuant to
subsection (b) of this section, and the certificate of trust may be amended
or further amended by the filing of a restated certificate of trust. The
restated certificate of trust shall be specifically designated as such in
its heading and shall set forth:
The present name of the business trust, and if it has been
changed, the name under which the business trust was originally formed;
The date of filing of the original certificate of trust with
the Secretary of State;
The information required to be included pursuant to subsection
(a) of this section; and
Any other information the trustees determine to include therein.
(2) A certificate of trust may be restated at any time for any purpose
as the trustees may determine. A trustee who becomes aware that any
statement in a restated certificate of trust was false when made or that
any matter described has changed making the restated certificate false in
any material respect, shall promptly file a certificate of amendment or a
restated certificate of trust."
Section 9. Amend §3814, Chapter 38, Title 12 of the Delaware Code by
striking said section in its entirety and substituting in lieu thereof a new
section to read as follows:
526 Chapter 265
Chapter 265 527
13814. Use of Names Regulated.
(a) The name of each business trust as set forth in its certificate of
trust must be such as to distinguish it upon the records of the Office of
the Secretary of State from the name of any corporation, limited
partnership, business trust or limited liability company reserved,
registered, formed or organized under the laws of the State of Delaware or
qualified to do business or registered as a foreign corporation, foreign
limited partnership or foreign limited liability company in the State of
Delaware; provided, however, that a business trust may register under any
name which is not such as to distinguish it upon the records of the Office
of the Secretary of State from the name of any domestic or foreign
corporation, limited partnership, business trust or limited liability
company reserved, registered, formed or organized under the laws of the
State of Delaware with the written consent of the other corporation,
limited partnership, business trust or limited liability company, which
written consent shall be filed with the Secretary of State.
(b) The name of each business trust as set forth in its Certificate of
Trust may contain the name of a beneficial owner, a trustee or any other
person.
(c) The name of each business trust, as set forth in its Certificate
of Trust, may contain the following words: "Company", "Association",
"Club", "Foundation", "Fund", "Institute", "Society", "Union", "Syndicate",
"Limited", or "Trust" (or abbreviations of like import).
(d) The exclusive right to the use of a name may be reserved by:
Any person intending to form a business trust and to adopt
that name; and
Any business trust registered in this State which proposes to
change its name.
(e) The reservation of a specified name shall be made by filing with
the Secretary of State an application, executed by the applicant, together
with a duplicate copy, which may either be a signed or conformed copy,
specifying the name to be reserved and the name and address of the
applicant. If the Secretary of State finds that the name is available for
use by a business trust, he or she shall reserve the name for the exclusive
use of the applicant for a period of 120 days. Once having so reserved a
name, the same applicant may again reserve the same name for successive
120-day periods. The right to the exclusive use of a reserved name may be
transferred to any other person by filing in the Office of the Secretary of
State a notice of the transfer, executed by the applicant for whom the name
was reserved, together with a duplicate copy, which may be either a signed
or conformed copy, specifying the name to be transferred and the name and
address of the transferee. The reservation of a specified name may be
cancelled by filing with the Secretary of State a notice of cancellation,
executed by the applicant or transferee, together with a duplicate copy,
which may be either a signed or conformed copy, specifying the name
reservation to be cancelled and the name and address of the applicant or
transferee. Any duplicate copy filed with the Secretary of State, as
required by this Subsection, shall be returned by the Secretary of State to
the person who filed it or his or her representative with a notation
thereon of the action taken with respect to the original copy thereof by
the Secretary of State.
(f) Fees as set forth in §3813 of this Chapter shall be paid at the
time of the initial reservation of any name, at the time of the renewal of
any such reservation and at the time of the filing of a notice of the
transfer or cancellation of any such reservation."
Approved June 27, 1994.
528
CHAPTER 266
FORMERLY
SENATE BILL NO. 357
AN ACT TO AMEND CHAPTER 1, TITLE 8 OF THE DELAWARE CODE, RELATING TO THE
GENERAL CORPORATION LAW.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Twothirds
of all members elected to each House thereof concurring therein):
Section 1. Amend 5280 (a)(1), Chapter 1, Title 8, Delaware Code by
deleting the word "requesting" in the first sentence and inserting in lieu
thereof the word "requiring".
Section 2. Amend 5280 (a)(1), Chapter 1, Title 8 Delaware Code by
inserting the following immediately after the words "all persons having a
claim against the corporation": "other than a claim against the corporation
in a pending action, suit or proceeding to which the corporation is a party".
Section 3. Amend 5280 (a)(1), Chapter 1, Title 8 Delaware Code by
inserting in subparagraph (a) thereof the following immediately after the
words "That all": "such".
Section 4. Amend 5280 (a)(1), Chapter 1, Title 8 Delaware Code by
inserting in subparagraph (b) thereof the following immediately after the
words "mailing address to which": "such".
Section 5. Amend 5280 (a)(1), Chapter 1, Title 8 Delaware Code by
inserting in subparagraph (c) thereof the following immediately after the
words "The date by which": "such".
Section 6. Amend 5280 (a)(1), Chapter 1, Title 8 Delaware Code by deleting
the "." at the end of subparagraph (d) and inserting in lieu thereof the
following "; and" and relettering the current subparagraph (d) thereof to
become subparagraph (e) thereof.
Section 7. Amend 5280(a)(1), Chapter 1, Title 8 Delaware Code by inserting
the following immediately after subparagraph (c) thereof: "d. That such
claim will be barred If not received by the date referred to in subparagraph
(c) of this subsection; and".
Section 8. Amend §280 (a)(1), Chapter 1, Title 8 Delaware Code by
inserting the following immediately before the last paragraph thereof: "f.
The aggregate amount, on an annual basis, of all distributions made by the
corporation to its stockholders for each of the three years prior to the date
the corporation dissolved."
Section 9. Amend 5280 (a)(1), Chapter 1, Title 8 Delaware Code by
inserting the following in the last sentence between the words "mail" and
"return" and between the words "requested" and "to": ",".
Section 10. Amend 5280 (a)(1), Chapter 1, Title 8 Delaware Code by
inserting the following in the last sentence Immediately after the words "each
known claimant of the corporation": "including persons with claims asserted
against the corporation in a pending action, suit or proceeding to which the
corporation is a party".
Section 11. Amend 5280 (a), Chapter 1, Title 8 Delaware Code by inserting
the following in current paragraph 2 thereof immediately after the words "A
notice sent by a corporation or successor entity pursuant to this subsection
shall": "state that any claim rejected therein will be barred if an action,
suit or proceeding with respect to the claim is not commenced within 120 days
of the date thereof, and shall" and by inserting the following between the
words "certified" and "mail": "or registered" and by renumbering current
paragraph (2) thereof to become parkgraph (3) thereof.
Section 12. Amend 5280 (a), Chapter 1, Title 8 Delaware Code by inserting
the following after paragraph (1) thereof: "(2) Any claim against the
corporation required to be presented pursuant to this subsection is barred if
a claimant who was given actual notice under this subsection does not present
the claim to the dissolved corporation or successor entity by the date
referred to in subparagraph (1)(c) of this subsection."
Section 13. Amend §280 (a), Chapter 1, Title 8 Delaware Code by inserting
the following immediately before subsection (b): "(4) A claim against a
corporation is barred if a claimant whose claim is rejected pursuant to
paragraph (3) of this subsection does not commence an action, suit or
proceeding with respect to the claim no later than 120 days after the mailing
of the rejection notice".
Section 14. Amend §280 (b)(2), Chapter 1, Title 8 Delaware Code by
inserting the following between the words "certified" and "mail": "or
registered".
Section 15. Amend §280 (c)(2), Chapter 1, Title 8 Delaware Code by
deleting the words "prior to the expiration of applicable statutes of
limitation" and inserting in lieu thereof the following "within 5 years after
the date of dissolution or such longer period of time as the Court of Chancery
may determine not to exceed 10 years after the date of dissolution".
Section 16. Amend §280 (c), Chapter 1, Title 8 Delaware Code by
renumbering current paragraph (1) thereof to become paragraph (2) thereof and
by renumbering current paragraph (2) thereof to become paragraph (3) thereof.
Section 17. Amend §280 (c), Chapter 1, Title 8 Delaware Code by inserting
the following immediately after "(c)": "(1) A corporation or successor entity
which has given notice in accordance with subsection (a) of this section shall
petition the Court of Chancery to determine the amount and form of security
that will be reasonably likely to be sufficient to provide compensation for
any claim against the corporation which is the subject of a pending action,
suit or proceeding to which the corporation Is a party other than a claim
barred pursuant to subsection (a) of this section."
Section 18. Amend §281 (b), Chapter 1, Title 8 Delaware Code by inserting
the following immediately after the words "A dissolved corporation or
successor entity which has not followed the procedures described in §280 of
this title": "shall, prior to the expiration of the period described in §278
of this title, adopt a plan of distribution pursuant to which the dissolved
corporation or successor entity".
Section 19. Amend §281 (b), Chapter 1, Title 8 Delaware Code by inserting
the following after the words "unmatured contractual claims known to the
corporation or such successor entity,": "(ii) shall make such provision as
will be reasonably likely to be sufficient to provide compensation for any
claim against the corporation which is the subject of a pending action, suit
or proceeding to which the corporation is a party" and by deleting "(ii)" and
inserting in lieu thereof "(iii)".
Section 20. Amend §281 (b), Chapter 1, Title 8 Delaware Code by deleting
the words "prior to the expiration of applicable statutes of limitation.
Such" and inserting in lieu thereof the following: "within 10 years after the
date of dissolution. The plan of distribution shall provide that such".
Section 21. Amend §281 (b), Chapter 1, Title 8 Delaware Code by inserting
the following immediately after the words "If there are insufficient funds,":
"such plan shall provide that".
Approved June 27, 1994.
Chapter 266 529
Mr
530
CHAPTER 267
FORMERLY
SENATE BILL NO. 353
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND AN ACT, BEING CHAPTER 276, VOLUME 65, LAWS OF DELAWARE, AS
AMENDED, ENTITLED "AN ACT TO REINCORPORATE THE TOWN OF GEORGETOWN" TO
ESTABLISH THE MONITION METHOD AS A PROCEDURE FOR THE COLLECTION OF
DELINQUENT TAXES AND OTHER CHARGES DUE THE TOWN OF GEORGETOWN.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds
of all members elected to each house thereof concurring therein):
Section 1. Amend Section 28, Chapter 276, Volume 65, Laws of Delaware, as
amended, by adding thereto a new subsection (1) said subsection (I) to read as
follows:
"(1) However, should the Town Manager so elect, he is empowered to
sell the lands and tenements of the delinquent taxpayer or the lands and
tenements of a delinquent taxpayer alienated subsequent to the levy of the
tax, by the direction of the Town Council, using any of those procedures
specified for the sale of land for the collection of taxes on the part of
the taxes for Sussex County, and all such procedures and methods available
for the sale of land, as aforesaid, as they are presently enacted and
hereafter amended, are included herein and made a part hereof by reference
thereto, including the method of sale by monition, as the same Is set forth
In the statutes made and provided, substituting the Town of Georgetown for
Sussex County therein.
Approved June 27, 1994.
CHAPTER 268
FORMERLY
SENATE BILL NO. 360
AN ACT TO REINCORPORATE THE TOWN OF SOUTH BETHANY
NHEREAS it is deemed advisable that the Charter of the Town of South
Bethany, Delaware, set forth in Chapter 78, Volume 67, Laws of Delaware with
subsequent amendments, be replaced by a new charter,
NOW, THEREFORE,
BE IT ENACTED BY THE GENERAL ASSEMBLY Of THE STATE OF DELAWARE:
(Twothirds of all members elected to each House concurring therein):
"1. Incorporation The inhabitants and property owners of the Town of
South Bethany, within the corporate limits as hereinafter defined in this
Charter or as extended as hereinafter provided, are hereby constituted and
declared to he a body politic incorporated in law and equity as a single
family, detached home community, by the corporate name of the "Town of South
Bethany, (hereinafter "Town") with power to govern themselves by such
ordinances, regulations, resolutions, and rules for municipal purposes as
they, through their duly elected officers and agents may deem proper, not in
conflict with the provisions of this Charter of government, nor with the
Constitution and Laws of the State of Delaware, nor of the United States; and
as such shall be able and capable to sue and be sued, plead and be impleaded,
answer and be answered, defend and be defended, in all courts.
The Town shall have perpetual succession and shall succeed to own or
possess all property, whether real, personal, or mixed, tangible or
intangible, of whatever kind and nature, and all the powers, rights,
privileges or immunities now or heretofore belonging to, possessed or enjoyed
by the Town of South Bethany previously incorporated at Chapter 78, Volume 67,
Laws of Delaware; as amended.
2. Territorial Limits. The present territorial limits of the Town are
hereby established and declared to be as follows:
BEGINNING at a point at the mean low water line of the Atlantic Ocean, at a
corner of State lands; thence with the mean low water line of the Atlantic
Ocean in a northerly direction, a distance of approximately 4,100 feet to the
line of the Middlesex Development;
thence, in a west northwest direction with the line of the Middlesex
Development to a common corner for Middlesex and South Bethany, and a point on
the westerly side of Pine Road;
thence, by and with the westerly side of Pine Road North 08 degrees 23
minutes 19 seconds East, 271.93 feet to a point, said point being a corner of
these lands and lands of South Bethany Recreational Association, Inc.
thence, leaving the westerly side of Pine Road, and by and with lands of
South Bethany Recreational Association, Inc., the following two (2) courses
and distances, North 81 degrees 37 minutes, 31 seconds West, 237.39 feet to a
point;
thence, North 08 degrees 20 minutes 11 seconds East, 292.10 feet to a
point, said point being a corner of these lands and lands of South Bethany
Recreational Association, Inc. and being situate on the south side of Route
#361;
thence, by and with Route #361 South 79 degrees 19 minutes 04 seconds West.
126.53 feet to a point; thence, South 84 degrees 14 minutes 46 seconds West,
287.50 feet to a point, said point being a corner of these lands and lands of
Sea Colony, Inc.,
thence, leaving said Route #361, and by and with lands of Sea Colony Inc;
South 11 degrees 05 minutes 02 seconds West, 526.15 feet to a point, said
point being a corner of these lands and lands of Sea Colony, Inc.;
531
thence, continuing with lands of Sea Colony, Inc., North 69 degrees 33
minutes 48 seconds West, 642.01 feet to a point, said point being situate on
the easterly right-of-way of the Assawoman Canal;
thence, continuing with the same bearing the distance necessary to extend
the line to the centerline of the Assawoman Canal;
thence, southeasterly along the center of the Assawoman Canal to the
Jefferson Creek Canal to a point where said low water line intersects the
State lands;
thence, by and with the State lands, South 60 degrees 45 minutes 00 seconds
East, to the point of beginning.
The above boundaries having most recently been established by an Act to
ReIncorporate the Town of South Bethany, Chapter 78, Volume 67, Laws of
Delaware, dated July 7, 1989.
The Town Council may, at any time hereafter, cause a survey and plot to be
made of said Town, and the said plot or any supplement thereto, when made and
approved by said Town Council, signed by the Mayor, and attested to by the
Secretary, with the Town Seal affixed, upon being recorded in the Office of
the Recorder of Deeds in and for Sussex County, State of Delaware, or the
record thereof, or a duly certified copy of said record, shall be evidence In
all courts of law and equity in this State.
3. Annexation of Territory. The Town shall have power to annex any
additional contiguous territory adjoining the corporate limits of the Town as
hereinbefore set forth or as hereafter extended pursuant to the procedure set
forth in this Section, and to apply to all such additional territory all laws,
ordinances, resolutions, and policies In force in the Town so far as they may
be locally applicable.
3.1 Initiation of Annexation Proceedings.
3.1.1 By Petition of the Property Owners. Any property owner(s)
holding record fee title to real property in territory contiguous (subject to
Sec. 3.2.11) to the then existing corporate limits of the Town may petition
the Town Council to annex that certain territory in which they own property.
Such petition shall be in writing, duly executed and acknowledged by each
petitioner, shall describe with reasonable certainty the territory proposed
for annexation, indicate the property owned by each petitioner therein and
state the reasons for the requested annexation. The Town Council may, within
ninety (90) days following the filing of such petition in the Town Office,
vote to accept such petition and proceed as hereinafter provided, or to reject
such petition. A petition not so accepted within said ninety (90) days shall
be null and void. For purposes of this Sec. 3.1.1 and Sec. 3.1.2, "territory
contiguous to the then existing corporate limits of the Town" shall include
both real property which is proposed to be included in the annexation and real
property which would be contiguous under Sec. 3.2.11.
3.1.2 Oy Resolutigp of the Town Council. The Town Council may, at
any time, adopt a resolution proposing the annexation of any territory
contiguous to the Town. Such resolution shall describe, with reasonable
certainty, the territory proposed to be annexed and state the reasons for the
proposed annexation. Upon adoption of such resolution, the Town Council shall
proceed as hereinafter provided.
3.2 Annexation Procedure. Whether annexation is proposed by
petition of the property owners or by resolution of the Town Council, the
following procedure shall be complied with:
3.2.1 Resolution and Notice. The Town Council shall adopt a
resolution notifying the property owners and the residents of both the Town
and the territory proposed to be annexed, that the Town proposes to annex
certain territory which adjoins its then corporate limits. The resolution
shall contain a description of the territory proposed to be annexed and shall
fix a time and place for a public hearing on the subject of the proposed
annexation. The resolution setting forth the information shall be published
at least once in at least two (2) newspapers which shall be of general
circulation in the Town and in the territory proposed to be annexed. Such
publication shall appear not less than thirty (30) days nor more than sixty
532 Chapter 268
(60) days before the date set for the hearing. In the event that such
publications do not appear on the same date, the date of the last publication
shall control. Such notice shall be In bold print or bordered in black in
such manner as to call attention thereto.
In addition to publication as herein provided, the Town Council shall,
not less than thirty (30) days nor more than sixty (60) days before the date
of such hearing: (1) cause a public notice, containing the full text of the
resolution to be posted in at least five (5) public places in the Town and in
at least one (1) place, viewable to the public, in the territory proposed to
be annexed; and (2) send a copy of such notice, certified mail, to the owners
of record of the lands proposed to be included in the annexation at their
addresses as shown on the public tax records. Written notice to one co-owner
shall be notice to all.
3.2.2 Public Rearing. At the time, date, and place specified in the
resolution proposing annexation (or at any revised date, time, or place if
duly noticed as provided in Sec. 3.2.1) the Town Council shall sit to hear
comments and opinion from any concerned party regarding the proposed
annexation. Such public hearing shall be for the purpose of obtaining public
opinion and legislative fact finding.
3.2.3 Resolution Ordering Special Election. Following the public
hearing, but in no event later than sixty (60) days thereafter, the Town
Council may pass a resolution ordering a special election to be held not less
than (30) days, nor more than sixty (60) days after the date of such
resolution proposing the special election. The passage of this resolution
shall be considered the determination of the Town Council to proceed with the
matter of the proposed annexation, provided, however, that if the annual
municipal election is to be held within one hundred twenty (120) days of the
date of the resolution adopted by the Town Council pursuant to this Section,
the election on the proposed annexation may be held in conjunction with the
annual municipal election and all provisions hereof shall be construed and
applied accordingly.
3.2.4 Notice of Ueda] Election. Notice of the time and place of
said special election shall be published not less than thirty (30) days nor
more than sixty (60) days before the date set for said special election.
Notice shall be published at least once in two (2) newspapers which shall be
of general circulation in the Town and in the territory proposed to be
annexed. In the event that such publications do not appear on the same date,
the date of the last publication shall control. Such notice shall be in bold
print or bordered in black in such manner as to call attention thereto. In
addition to such publication as herein provided, the Town Council shall, not
less than thirty (30) days nor more than sixty (60) days before the date of
such special election, cause a public notice containing the full text of the
resolution proposing such special election to be posted in at least five (5)
public places In the Town and in at least one (1) place, viewable to the
public, in the territory proposed to be annexed.
3.2.5 Those Entitled to Vote.
(a) At such special election, any person who is lawfully
entitled to vote at the annual Municipal election, if it were being
held on that day, and any person who would be so entitled if the
area proposed to be annexed were already included in the Town,
shall be entitled to one (1) vote. For purposes of this section,
"lawfully entitled to vote" shall include "registered to vote" If
registration is required; but all persons in the area to be annexed
shall be deemed to be registered if they would otherwise be
entitled to vote. In addition, each legal entity, other than a
natural person, owning property in its own name, either in the Town
or in the territory proposed to be annexed, shall be entitled to
one (1) vote.
(10 These provisions shall be construed so as to permit one
person, one vote". Should a voter be entitled to vote by virtue of
both residence and ownership of property, that voter shall be
entitled to only one (1) vote. Should a voter be entitled to vote
by ownership of two (2) or more properties, that voter shall be
entitled to only one (1) vote.
Chapter 268 533
(c) Any legal entity (other than a natural person) entitled to
vote must cast its vote by a duly executed and acknowledged power
of attorney. Such power of attorney shall be surrendered to the
Board of Special Election which shall be filed with the Town
Manager. Such power of attorney so filed shall constitute
conclusive evidence of the right of said person to vote in the
special election on behalf of the legal entity granting the power.
3.2.6 Conduct of the Special Election.
(a) The Town Council may cause voting machines, electronic voting
systems, or paper ballots to be used in the special election, as
required by law, the form of ballot to be printed as follows:
For the proposed annexation.
Against the proposed annexation.
The Mayor shall appoint three (3) natural persons to act as a Board
of Special Election. One (1) of the said persons so appointed
shall be designated the Presiding Officer. The Board of Special
Election shall be the sole and final judge of the legality of the
votes offered at such special election. It shall keep a true and
accurate list of all natural persons and other legal entities
voting. Voting shall be conducted in a public place as designated
by the resolution calling the special election. The polling place
shall be open for a minimum of six (6) consecutive hours as set by
the Town Council, on the date set for the special election. All
persons in the polling place at the time of the closing of the
polls shall be permitted to vote, even though such votes are not
cast until after the time for the closing of the polls. All
ballots cast by those persons or other legal entities authorized to
vote in the territory proposed to be annexed shall be deposited in
designated ballot box(es) or cast in designated voting machine(s),
and all ballots cast by those persons or other legal entities who
are authorized to vote in the Town shall be deposited in other
designated ballot box(es) or cast in other designated voting
machine(s).
(b) Any qualified voter may vote by absentee ballots pursuant to
rules promulgated by the Town Council; and such rules shall be
consistent with rules governing absentee voting for Town officials
promulgated pursuant to Sec. 6.4 (f).
3.2.7 Results of Special Election.
In order for the territory proposed to be annexed to be
considered annexed, a majority of the votes cast both from the Town
and from the territory proposed to be annexed must have been cast
in favor of the proposed annexation.
In the event that the special election results in an
unfavorable vote for the annexation in either or both the Town and
the territory proposed to be annexed, no part of the territory
proposed to be annexed shall again be considered for annexation for
a period of at least one (1) year from the date of the special
election.
If the vote in both the Town and in the territory proposed
to be annexed is favorable to the proposed annexation, the Town
Council shall at its first meeting following the special election
adopt a resolution annexing the said territory and including it
within the limits of the Town. Upon the adoption of the resolution
of annexation, a copy thereof, signed by the Mayor and certified by
the Secretary, with the Town Seal affixed, together with a plot of
the area annexed, shall forthwith be filed for recording in the
Office of the Recorder of Deeds in and for Sussex County,
Delaware. The territory so annexed shall be considered to be a
part of the Town from the moment the resolution of annexation is
adopted by he Town Council. Failure to record the resolution, or
the plot accompanying same, shall not invalidate the annexation,
534 Chapter 268
but such recording may be enforced by writ of mandamus or mandatory
injunction.
3.2.8 Annexation Agreements. Notwithstanding any provision herein to
the contrary, where, pursuant to Sec. 3.1.1 of this Charter, annexation
proceedings are initiated by a property owner(s) holding record title to real
property in territory contiguous to the then existing corporate limits of the
Town, such petition may be made contingent upon an annexation agreement with
the Town which agreement may address any matters which would be relevant to
the subject lands, if annexed. By way of example and not in limitation, such
agreement may address zoning, subdivision approval, tax relief, public
utilities, and public improvements. In the event the Town Council approves
such an agreement and votes to accept a petition under Sec. 3.1.1 of this
Charter, such annexation agreement shall be deemed a material part of the
annexation and shall be included in all subsequent steps of the annexation
procedure: (1) the resolutions and notices adopted by the Town Council
pursuant to Sec. 3.2.1, Sec. 3.2.3, Sec. 3.2.4 and Sec. 3.2.10 shall recite
that the proposed annexation includes and is subject to an annexation
agreement, shall briefly summarize its terms, and shall state that copies of
the agreement are available upon request at the Town Office;
(2) if the results of the election are favorable to the proposed annexation
as provided by Sec. 3.2.7(a) of this Charter, the resolution annexing the
territory (as provided by Sec. 3.2.7(c)) shall recite that the annexation is
subject to an annexation agreement and shall incorporate the terms of such
agreement by specific reference; and all affected parties shall be bound to
honor the provision of such agreement. No agreement made at the time of
annexation under this Sec. 3.2.8 shall extend beyond seven (7) years from the
date the property is annexed into the Town; and such agreement shall be null,
void, and unenforceable after the expiration of said seven (7) years.
An annexation agreement may be modified or amended by mutual agreement of
the petitioner and the Town Council at any time prior to the resolution
ordering the special election pursuant to Sec. 3.2.3 of this Charter, but any
material modification or amendment shall be deemed to be: (1) the withdrawal
of the original petition, and (2) the filing of a new petition under Sec.
3.1.1.
3.2.9 Property Owned by the State of Delaware:
Highways. Streets. Roads. Alleys and Haterways.
Real property owned by the State of Delaware may be annexed by the Town
without the State casting a vote in the special election, provided the State
agency having control and supervision thereof does not notify the Town, in
writing, of its objection to such annexation within thirty (30) days after
receiving written notice of the resolution proposing the annexation, as
provided in Sec. 3.2.3.
3.2.10 Limitations. No action contesting the annexation of any
territory under this Section shall be brought after the expiration of sixty
(60) days from the publication of a notice in at least two (2) newspapers,
both of general circulation in the Town and in the territory annexed, which
notice shall contain the following information:
(a) notice that the Town has annexed such territory and a
description thereof;
(6) notice that any person or other legal entity desiring to
challenge such annexation must bring his/her/its action within sixty
(60) days from the date of publication of such notice or forever be
barred from doing so. Such notice shall be in bold print or bordered
in black in such manner as to call attention thereto. In addition to
publication as herein provided, the Town Council shall cause a public
notice, containing the information set out in subparagraph (a) and (b)
above (using date of posting for date of "publication") to be posted in
at least five (5) public places in the Town and in at least one (1)
place, viewable to the public in the territory to be annexed. In the
event the publication and/or the posting dates do not appear on the
same date, the date of the last publication or posting shall control.
3.2.11 Contiguity.
Chapter 268 535
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536 Chapter 268
Contiguity with the Town's existing corporate limits, or with
other territory which is itself contiguous with the Town's existing
corporate limits, shall not be deemed interrupted by the existence
of any highway, street, road, alley, or waterway (including but not
limited to ponds, creeks, canals, lagoons, wetlands, and ditches)
which passes through, or lies within, the territory to be annexed.
Territory that is separated from the corporate limits of the
Town by federal or stateowned roads, lands, or waterways shall,
nevertheless, be considered contiguous territory for the purposes
of this Sec.
4 pgmers_slt_theIgmn.
4.1 General. The Town shall have and enjoy all the powers possible for
a municipal corporation to have under the Constitution and Laws of the
United States and the State of Delaware, as fully and completely as
though they were specifically enumerated in this Charter.
4.2 Enumeration of Powers. Not by way of limitation upon the scope of
the powers vested in the Town Council to exercise all powers delegated
by this Charter to the Town (except as may expressly appear herein to
the contrary), but rather by way of enumeration and for purposes of
clarity, the Town Council is vested by this Charter with the following
powers, that is to say, the Town Council:
4.2.1 may have and use a corporate seal which may be altered,
changed, or renewed at any time.
4.2.2 may hold and acquire by gift, negotiation and purchase,
devise, lease, or condemnation property both real (improved or
unimproved) and personal, or mixed, within or without the
boundaries of the Town, in fee simple or lesser estate or interest,
necessary or desirable for any municipal or public purpose,
Including but not limited to providing sites for constructing,
Improving, extending, altering or demolishing:
public buildings;
parks;
streets, squares, lanes, alleys, and
sewer systems, including but not limited to sewage lines,
conduits, sewage disposal or treatment plants, and all
appurtenances thereto;
water systems, including but not limited to, water plants,
wells, lines, conduits and all appurtenances thereto;
recreational facilities, including but not limited to
public bathing beaches, gymnasiums, athletic fields, bicycle paths,
tennis, basketball, or paddle ball courts and all appurtenances
thereto;
adequate municipal services for persons and other legal
entities residing either within or beyond the corporate limits of
the Town, to their mutual benefit and advantage, upon such terms,
charges, and conditions as the Town Council may determine and
approve;
slum clearance and redevelopment, urban renewal,
revitalization or rehabilitation of blighted areas or removal of
dangerous buildings;
(f) protection services for the citizens of the Town to
include, but not limited to, police, fire, rescue and paramedic
support.
4.2.3 may sell, grant, alienate, lease, mortgage, manage, hold and
control such property as the interests of the Town may require
except as prohibited by the Constitution and Laws of the United
States and the State of Delaware or as restricted by this Charter;
4.2.4 may pay for the acquisition, construction, improvement,
repair, extension, alteration or demolition of any Town property
(real, personal or mixed) from the general fund of the Town, from
the proceeds of any bond issue which may be authorized and sold for
any of the purposes for which lands and premises are authorized by
this Charter to be acquired, and/or from the proceeds of any grant
or loan made to the Town by any governmental entity of the United
States or the State of Delaware where the proceeds of the grant or
loan are for the purposes for which lands and premises are
authorized by this Charter to be acquired;
4.2.5 may acquire, build, erect, and maintain buildings and
facilities necessary or required for housing and equipping the
offices of the Town;
4.2.6 may purchase, take and hold real and personal property when
sold for any delinquent tax, assessment, water rent, electric bill,
gas bill, license fee, tapping fee, charge growing out of abatement
of nuisances, or other charge due the Town and sell the same;
4.2.7 may:
ascertain, locate, lay out, establish, open, change,
alter, widen, abandon, regulate the use and enjoyment of, prevent
or remove any obstruction of, level, grade, flag, dress,
macadamize, pave, improve, dredge, erect, remove, repair and
replace any new or present street, highway, road, alley, waterway,
park, crosswalk, wharf, dock, boat ramp, sewer, drain, gutter,
aqueduct or pipeline or portion thereof, or any new or present
curb, or gutter or portion thereof in the Town and the beach or
strand in or contiguous to the Town;
specify the grade thereof, the materials to be used in the
doing thereof and the manner in which the same shall be done;
enter into contracts or agreements with the State of
Delaware for the permanent maintenance, repair and upkeep of any
street, highway, road, alley, waterway, sidewalk or other public
thoroughfare within the Town;
4.2.8 may provide, construct, extend, maintain, manage and control
groins, bulkheads, embankments, rip rap, piers or fills for the
preservation of any waterway, beach, strand or high land within the
corporate limits of the Town and contiguous thereto to the end that
the same may be preserved and properly protected that the general
public might enjoy the use thereof;
4.2.9 may regulate and control the planting, growing, treatment
and preserving of ornamental shade trees in the streets, avenues,
highways, parks and lands of the Town and may authorize or prohibit
the removal or destruction of said trees;
4.2.10 may fully control the drainage of all surface water within
the Town, and to that end, may provide, construct, extend,
maintain, manage and control a surface water drainage system for
the health, sanitation, and convenience of the inhabitants of the
Town;
4.2.11 may provide an adequate supply of potable water for the
Town and its inhabitants and, to this end, may:
(a) acquire, lease, erect, construct, maintain, operate,
extend, enlarge, renew, replace, control and dispose of wells,
reservoirs, pumps, machines, water treatment facilities, stations,
tanks, standpipes, water mains, fire hydrants and all other
equipment, property, or rights used in or about the collection,
storage, purification, conveyance or distribution or sale of water;
Chapter 268 537
538 Chapter 268
regulate and prescribe for what public or private purposes
the water furnished by the Town may be used, the manner of its use,
the amounts to be paid by the users thereof, the means whereby such
amounts shall be collected and the fines or penalties, or both, for
any willful or negligent injury, or damage to or interference with
the water system or the equipment of the Town;
furnish or refuse to furnish water from the Town system to
places and properties outside the Town corporate limits; and
contract for and purchase water and distribute the same to
users within or without the Town with the same full powers as
though such water had been initially reduced to usefulness by the
Town itself;
4.2.12 may:
provide, construct, extend, maintain, manage and control:
a sewer system and/or a sewage treatment and disposal plant and
facilities for the health, sanitation and convenience of the
inhabitants of the Town:
regulate and prescribe for what private or public uses or
purposes the system may be used, the manner of its use, the amounts
to be paid by the users thereof, the means whereby such amounts
shall be collected and the fines or penalties or both, for any
willful or negligent injury or damage to, or interference with the
said system, plant or facilities;
furnish or refuse to furnish sewer disposal service from
the Town system to places and properties outside the Town limits;
compel any and all properties in the Town to be connected
to the sewer system of the Town; and
contract for and purchase sewer disposal service and
resell the same to users within or without the Town with the same
full powers as though such service had been initially provided by
the facilities therefor of the Town itself;
4.2.13 may provide for and control the lighting of the streets,
highways, roads, alleys, waterways, parks, strands, crosswalks,
wharfs, docks, public buildings or other public places in the Town;
4.2.14 may regulate, control or prevent the use or storage of
gasoline, naphtha, gun powder, fireworks, tar, pitch, resin and all
other combustible or dangerous materials and the use of candles,
lamps and other lights in stores, shops, and other places; and may
regulate, suppress, remove or secure any fireplace, stove chimney,
oven broiler or other apparatus which may pose a danger of causing
fires;
4.2.15 may:
provide for the organization of a fire department and the
control and government thereof;
establish fire limits and do all things necessary for the
prevention or extinguishment of fires; and
contribute or donate funds to any volunteer fire company
or companies incorporated under the Laws of the State of Delaware,
or any volunteer fire association or associations maintaining and
operating fire fighting equipment and service to the Town, provided
that any such contribution or donation may be made subject to such
conditions as to the use thereof as the Town Council may deem
advisable;
4.2.16 may provide for the organization of ambulance, rescue or
paramedic services and the control and government thereof, may
establish territories within the Town for such services; and may,
at the discretion of the Town Council, contribute or donate funds
to any such service formed or incorporated under the Laws of the
State of Delaware, or to any volunteer service maintaining and
operating ambulance, rescue or paramedic equipment and services for
the inhabitants of the Town, provided that any such contribution or
donation may be made subject to such conditions to the use thereof
as the Town Council may deem advisable;
4.2.17 may prohibit drunkenness, use or distribution of any
controlled substance, gaming and fraudulent devices and riots,
disturbances and disorderly assemblies;
4.2.18 may adopt and enforce such ordinances regulating traffic on
all streets, highways, roads, alleys and public ways within the
Town as are consistent with the motor vehicle laws of the State of
Delaware;
4.2.19 may adopt and enforce such ordinances regulating traffic on
all waterways within the Town as are consistent with U. S. Coast
Guard and Delaware Marine Police regulations;
4.2.20 may regulate or prohibit the use of streets, highways,
roads, alleys, beaches, parks, rights-of-way, other public places
and Town-owned lands for commercial use, or activities not
otherwise protected from such regulation or prohibition by the
Constitution and Laws of the United States and the State of
Delaware;
4.2.21 may regulate or prohibit the use of guns, air guns, spring
guns, pistols, sling shots, bean shooters, and any other device for
discharging missiles which may cause bodily injury or injuries or
harm to persons or property; and may regulate or prevent the use of
bonfires, open fires, fireworks, bombs and detonating works of all
kinds within the Town;
4.2.22 may provide for and preserve the health, peace, safety,
cleanliness, beauty, good order and public welfare of the Town;
4.2.23 may prohibit, restrain, license or regulate all public
sports, exhibitions, shows, parades, productions, circuses or other
public performances, amusements and games;
4.2.24 may direct the excavation, draining, filling, cleaning,
curbing or fencing of privately owned lots, tracts, pieces or
parcels of land in the Town which are deemed dangerous or
unwholesome, or necessary to carry out any improvements authorized
by this Charter and may assess the cost thereof against the owner
thereof;
4.2.25 may define, prevent, abate or remove nuisances,
obstructions or any other conditions detrimental to the public
safety, health or welfare; and may cause the cost of such abatement
or removal to be paid by the person or other legal entity causing
or permitting same to exist;
4.2.26 may adopt ordinances providing for the condemnation of any
building o+r structure in the Town which is determined, on the
basis of standards set forth in such ordinances to be a fire hazard
or otherwise unsafe, and may cause the same to be torn down or
removed;
4.2.27 may adopt ordinances to establish and regulate animal
pounds and restrain, prohibit and impound any domestic or wild
animal, beast, bird or fowl running at large within the corporate
limits of the Town; authorize the destruction of the same; and may
regulate the keeping of pets within the Town, and provide for
registration and fees thereof;
4.2.28 may provide for the punishment of a violation of any
ordinance of the Town by appropriate fine, penalty, or forfeiture;
Chapter 268 539
540 Chapter 268
4.2.29 may regulate and control the construction, alteration, or
removal of dwellings or other structures and provide for granting
permits for same;
4.2.30 may regulate and control construction activities by private
individuals or companies at such times and seasons of the year and
at such hour of the day as the Town Council may determine necessary
and appropriate for the public health, welfare and convenience.
4.2.31 may provide for and regulate the naming of the streets and
waterways and the numbering of houses and commercial establishments
within the Town corporate limits;
4.2.32 may:
establish setback lines for buildings and other structures
to be erected;
zone or district the Town and establish standards for
construction and building materials;
prohibit any construction except that for which a building
permit has been issued pursuant to ordinances as prescribed by the
Town Council; and
exercise all powers and authorities pursuant to 22 Del.
C., Chapter 3, or any future corresponding provisions of law;
4.2.33 may regulate the conduct of any business, profession or
occupation within the corporate limits of the Town;
4.2.34 may license, tax, and collect fees annually for any and all
municipal purposes of such various amounts as the Town Council,
from time to time, shall fix from any individual, firm, association
or corporation carrying on, or practicing any business, profession
or occupation within the corporate limits of the Town;
4.2.35 may grant licenses, issue permits, and regulate any
activity within the corporate limits of the Town; specifically
including any beach property, whether previously dedicated to or
owned by the State of Delaware;
4.2.36 may impose upon new development or construction or upon
first-time occupancy of new construction such "impact fees" as are
reasonably calculated to recover the cost of installing, enlarging,
improving or expanding public or municipal improvements which have
a rational relationship to such new construction;
4.2.37 may borrow and appropriate money to pay the debts and
liabilities of the Town, or any portion thereof, from any funds
available therefor; and may, in case of emergency, temporarily
transfer money from one fiscal account to another fiscal account of
the Town;
4.2.38 may raise revenue for the Town by the levying and
collecting of taxes on real property, taxes on business activities,
special assessments, licensing fees and other charges for services;
4.2.39 may investigate the conduct of any officer, employee or
representative of the Town, in the conduct of his or her official
duties, and for such purpose may compel the attendance of witnesses
and the production of books, _records, or other evidence by
subpoena, and may administer oaths or affirmations;
4.2.40 may establish a pension plan or a health and welfare plan
or both, for the employees of the Town under such terms and
conditions as the Town Council may deem appropriate, with the
funding accomplished through an insurance company licensed by and
authorized to do business in the State of Delaware, approved by the
Town Council;
Chapter 268 541
4.2.41 may, by condemnation proceedings, take private property or
the right to use private property within the corporate limits of
the Town for any of the purposes specified in this Charter, such
proceedings to be in conformity with 10 Pe. C. Chapter 61, or any
future corresponding provision of law;
4.2.42 may adopt, alter, and amend all such ordinances,
regulations, resolutions, and rules not contrary to the
Constitution and Laws of the United States and the State of
Delaware as the Town Council may deem necessary to carry into
effect any of the provisions of this Charter or any Federal or
State law relating generally to municipal corporations or which
may be deemed proper and necessary for the order, protection,
and good government of the Town; the protection of persons and
preservation of property; and the protection of the public
health and welfare of the Town and its inhabitants. Any
ordinance relating to the public health of the Town and its
inhabitants or designed to prevent the introduction or spread
of infectious or contagious diseases or to prevent nuisances
affecting the same, shall apply not only within the corporate
limits of the Town but as well to all areas and persons outside
the Town within one (1) mile from its corporate limits.
4.3 Liberal Construction: Manner of Exercise. The powers of the Town
under this Charter shall be liberally construed in favor of the Town,
and the enumeration of particular powers by this Charter shall not be
held or deemed to be exclusive, but, in addition to the powers
enumerated herein or implied hereby, appropriate to the exercise
thereof, the Town shall have and may exercise any and all powers which,
under the Constitution and Laws of the United States and the State of
Delaware, it would be competent for this Charter to specifically
enumerate.
All powers of the Town, whether express or implied, shall be
exercised in the manner prescribed by this Charter, or if not
prescribed herein, then in the manner provided by ordinances,
regulations, resolutions, and rules of the Town Council. The Council
may, by ordinance or resolution, do such other act or thing
incidental, necessary, or useful in connection with any of the
matters duly authorized in this Charter.
4.4 Interagvernment1J C000eration. The Town may exercise any of its
powers or perform any of its functions and may participate in the
financing thereof, jointly or in cooperation, by contract or otherwise
with any one (1) or more states or civil divisions or agencies thereof,
or the United States or any agency thereof, except as prohibited or
restricted by the Constitution and Laws of the United States and the
State of Delaware or by this Charter.
5. Town Council.
5.1 Governing Body. The government of the Town and the exercise of
all powers conferred by this Charter, except as otherwise provided
therein, shall be vested in and exercised by a seven (7) member Town
Council composed of a Mayor and six (6) other members, each of whom
shall be elected by popular vote as hereinafter provided.
5.2 Oua1ification5.
5.2.1 Genera). A candidate for the Town Council shall be a
natural person at least twenty one (21) years of age, a citizen of
the United States, and otherwise qualified to vote at the annual
municipal election as provided in Sec. 6.1.
5.2.2 Z.. 1 . At least four
(4) members of the Town Council shall be residents of the State of
Delaware, as defined by the Laws of the State of Delaware.
(a) If a "resident" member of the Council who is also a
freeholder, should, during term of office, fail to maintain
residency in the State, but continue to be a freeholder during his
542 Chapter 268
or her term of office, that person shall continue to be deemed a
"resident" member of the Town Council.
(b) If a non-resident member of the Council, during his or her
term, establishes residency in the State, that person shall be
deemed a resident member of the Council as of the next regularly
scheduled annual municipal election.
5.2.3 Residency Requirement for Mayoral Candidates. The Mayor
shall be a resident of and property owner in the Town of South
Bethany, Delaware, twenty-one (21) years of age and otherwise
qualified as provided in Sec. 5.2.1 and 5.2.2.
5.2.4 council to Act as Film) Judge. The Town Council, by
majority vote of its disinterested members, shall be the sole and
final judge of the qualifications of its members, and shall
interpret and apply the standards set forth in this Charter.
5.3 Tv_e_m_gf_fffjse_Ataggeisg_ermsT.
5.3.1 Term of Qffice. The term of office for each member of the
Town Council shall be two (2) years.
5.3.2 Staggered Terms. The present Mayor and Council members of
the Town of South Bethany, and other officers appointed to serve in
the office under Chapter 78, Volume 67, Laws of Delaware, as
amended, shall continue to serve as Council members and Officers of
the Town from and after the effective date of this Charter, until
the successors are duly elected or appointed. At the annual Town
election in 1995, three (3) Council members shall be elected to
fill the vacancies created by the expiration of the terms of Office
of the four (4) then-outgoing Council members. At the annual Town
election in 1996, the Mayor and three (3) Council members shall be
elected to fill the vacancies created by the expiration of the
terms of office of the three (3) then-outgoing Council members.
Thereafter, the Mayor and three (3) members of the Town Council
shall be elected in even years and three (3) members shall be
elected In odd years.
6. Municipal Elections.
6.1 Voter qualifications. Any natural person shall be qualified to
vote in any annual municipal election, special election or referendum
who, on voting day shall:
have attained eighteen (18) years of age;
be a citizen of the United States;
shall be registered under the Town's Voter Registration
ordinance (if one be In effect); and
shall have been either:
a freeholder in the Town, as defined herein, for a period
of ninety (90) consecutive days Immediately preceding the date of
the election; or
a resident of the Town, as defined herein, for at least
nine (9) months, consecutively or non-consecutively of the
twelve (12) month period immediately preceding the date of the
election in which he or she seeks to vote.
For purposes of this Charter except for Sec. 5.2.2.,
a "freeholder" shall be deemed to include any natural
person who holds title of record to a fee simple estate or a life
estate in and to real property located within the corporate limits
of the Town; and
a "resident of the Town" shall mean any natural person who
has actually lived within the corporate limits of the Town at least
Chapter 268 543
nine (9) months, consecutively or non-consecutively, of the twelve
(12) month period immediately preceding the date of the election.
6.1.1 Deterwination of Voter Eligibility. The Board of Elections
is responsible to determine voter qualifications as prescribed in
this Charter, as provided in Sec. 6.1.
6.2 Voter Registration. The Town Council may, by ordinance, provide
for the registration of voters and may prescribe registration and
voting places. Such ordinance shall not alter the qualifications of
voters as defined in this Charter nor unduly impair the right to vote
In any election.
6.3 Uncontested Election. Where there is only one Cl) official
candidate for any office on the day of the annual municipal election,
the official candidate shall be deemed elected thereto without the
holding of such an election.
6.4 Annual Municipal Election Procedures.
Notice of Candidacy. In order to be listed on the ballot for
election of Mayor and other Town Council Members, each candidate shall
file a written notice of intention to seek such office with the Town
Manager during normal business hours at least forty-five (45) days
prior to the date set for the election. If the Election Board (Sec.
6.4.(g)) determines that any candidate may not meet the qualifications
for office, it shall notify the Mayor who shall call a special meeting
of the Town Council to be held not less than thirty (30) days prior to
the date set for the election, at which the Town Council shall decide
the matter. The candidate whose qualifications are at issue shall be
notified, by registered mail, of the date, time and place of the
meeting, at which he or she may appear and testify. If the Town
Council determines that the candidate does not meet the qualifications
of office, it shall reject the notice of intention to seek office and
his or her name shall not appear on the ballot. In making the
determination, only those members of the Town Council who are not
running for re-election shall be entitled to vote on the question.
Dote Time. and Place. Annual municipal elections for the
Town Council shall be held on the last Saturday before the last Monday
In May at such time and place, within the Town, as shall be determined
by the Town Council. The polls shall remain open for at least a six
(6) hour period to be determined by the Town Council.
(0 Notice of Elections. Public notice of any election to elect
members to the Town Council shall be given by posting notices thereof
in at least five (5) public places In the Town not less than thirty
(30) days before the date of such election and by publishing notices at
least once in two (2) newspapers of general circulation in the Town at
least thirty (30) days before the date of the election. Such notices
shall state the date, time, and place of the election as well as a
description of the offices to be filled. Such notices as shall be in
bold print or bordered In black in such manner as to call attention
thereto. In the event that the publications and/or posting do not
appear on the saMe date, the date of the last publication or posting
shall control.
Voting Machine. Paper Ballots. Elections shall be by voting
machine, electronic voting system, or by paper ballot as the Town
Council shall determine; provided, however, that voting machines or
electronic voting systems shall be used if required by State law.
_Absentee Voting. Any qualified voter may vote by absentee
ballot at any election.
/Mies Governing Conduct of Elections. The Town Council shall
adopt rules, consistent with the provisions of this Charter, and with
applicable state or federal law governing the conduct of elections,
including absentee voting.
jElection Board. Every election shall be held under the
supervision of an Election Board. The Election Board shall consist of
544 Chapter 268
three (3) Judges of Election. Such Judges shall be qualified voters of
the Town and shall be appointed for that purpose by the Town Council at
least sixty (60) days before such election, If, at the opening of the
polls, there shall not be present any member of the Election Board, in
such case, the ranking Town officer available at the opening of the
polls shall appoint a qualified voter or voters to act as a member or
members of the Election Board to fill vacancies caused by such
absence. Members of the Election Board shall be the sole and final
judges of the conduct of the election, the legality of the votes
offered, and the election results. The Election Board shall have the
power to subpoena persons and records relative to the determination of
the qualifications of voters and the legality of any vote or votes
offered.
(II) Election Results. Upon the close of such election, the votes
shall be counted by the Election Board. The persons having the highest
number of votes shall be declared by the Election Board to be duly
elected to such vacant offices as then exist. Persons holding office
shall continue in office until their successors are duly elected and
installed.
(1) Tie Vote. In the event of a tie vote for any office, the
election to such office shall be determined by a run-off election
within thirty (30) days pursuant to the election procedures of this Sec.
(3) Preservation of Records and Ballots. The custody of election
records and all ballots cast shall be maintained in the Town Office for
a minimum period of six (6) months.
(k)Elestign_Recard_Bozis. The Election Board shall enter in an
Election Record Book the complete results of the election, to be
subscribed by all Election Board Members. Such Book shall be preserved
by the Town Council.
7. Organization of Town Council.
7.1 Organizational Meeting. An organizational meeting of the Town
Council shall be held on the first Saturday following the date of the
election. Such meeting shall be held at the usual place for holding
regular Town Council meetings and shall be open to the public. The
newly elected Mayor and other Town Council members shall assume the
duties of their respective offices, being first duly sworn or affirmed
to perform their duties with fidelity. Such oath or affirmation shall
be taken before a Notary Public, a Justice of the Peace, the Town
Alderman, or by one (1) of the holdover Town Council members. At the
organizational meeting, the Mayor shall appoint a President
Pro-tempore, a Council Secretary, and a Treasurer subject to
ratification by majority vote of the Town Council. The Council
Secretary and Treasurer need not be members of the Town Council. Each
of these officers of the Town Council shall serve in that position for
a term of one (1) year or until the organizational meeting after the
next succeeding election.
7.2 Duties of Mayor. The Mayor shall preside at all meetings of the
Town Council and shall have a vote on all pending issues. The Mayor
shall execute, on behalf of the Town, when authorized by Town Council
majority vote, all agreements, contracts, bonds, deeds, leases, and
other legal documents. The Mayor shall appoint such standing and other
committees as the Town Council shall require, provided that a member of
the Town Council shall serve as Chairman of each standing committee.
It shall be the duty of the Mayor to see that the ordinances,
regulations, resolutions, and rules of the Town are duly executed; he
or she shall perform all additional duties as are imposed by this
Charter. The Mayor shall be empowered to delegate specific duties and
responsibilities and to administer oaths and affirmations.
7.2.1 EMergency Powers. The Mayor shall be empowered to act on
behalf of the Town, without prior Town Council approval, in the
event of a sudden emergency requiring prompt action, in order to
protect the public health, safety, and welfare of the Town, its
inhabitants and property owners. A "sudden emergency", for
purposes of this Section shall include, by way of example and not
in limitation, a major fire or conflagration, significant flooding,
or serious storm threatening significant damage, a civic
disturbance, or a toxic spill. A "sudden emergency" shall also
include any emergency situation as declared by any county, state or
federal agency having jurisdiction over the Town where the scope of
the emergency so declared includes the Town.
7.3 Duties of President Pro Tempore. The President Pro-tempore shall
function as Mayor during the absence or disability of the Mayor.
7.4 _Duties of Council jgcretary. The Council Secretary shall be
responsible for recording the proceedings of the Town Council and for
maintaining safe custody of other Town records and shall perform such
other duties as directed by ordinance or the Town Council.
7.5 Duties of Treasurer. It shall be the duty of the Treasurer to
attend all Town Counctl meetings. The Treasurer shall be responsible
for maintaining custody of all Town funds in a banking Institution
selected by the Town Council; for deposit of all Town receipts and
disbursement of Town funds in payment of bills presented for payment;
for presenting an annual financial report to the Town Council at the
end of the fiscal year; and for performing such other duties as
directed by ordinance or the Town Council. The Treasurer, before
assuming the duties of such office, shall be required to give bond with
sufficient surety to the Town Council in an amount at least equal to
the funds likely to be handled in the discharge of such duties. The
Treasurer shall at the end of such term of office deliver to his/her
successor in office all fiscal records relating to such office and all
Town funds then held In the Treasurer's custody as part of the
settlement of final account. The cost of said bond shall be paid out
of Town funds. In case of resignation, Incapacitation, or at the
expiration of the term of office an audit shall be performed.
7.6 Filling Vacancies of Appointed Officers. If a vacancy shall occur
In the office of any officer appointed pursuant to Sec. 7.1 of this
Charter, the successor shall be selected for the unexpired term
pursuant to the procedures of Sec. 7.1.
7.7 Code of Ethics.
7.7.1 Conflict of Interest. No Town Council member, officer,
employee, or representative shall represent the Town in any
business or governmental transaction involving any corporation or
other private party in which he or she has a direct or indirect
financial interest.
7.7.2 Abgse of Office. No Town Council member, officer, employee,
or representative shall use his or her official position to obtain
an undue, unwarranted, or unfair advantage, privilege or exception.
7.7.3 Disclosure of Information. No Town Council member, officer,
employee, or representative shall disclose to any unauthorized
person, confidential information gained by reason of official
position, nor shall such information be used for personal gain or
benefit.
7.7.4 Contracts for Materials and Services.
No Town Council member, officer, employee or
representative may contract with the .Town to provide personal
services or materials for the benefit of the Town, nor may any
corporation or other private party in which such official holds a
pecuniary interest contract with the Town to provide such services
or materials, except with the unanimous consent of all other Town
Council members.
Notice of all bids for street, sewer, or water systems,
installations, improvements, extensions, or repairs shall be
published at least once in at least two (2) newspapers having
general circulation in the Town.
Chapter 268 545
546 Chapter 268
7.7.5 Comoetitive Bidding. All contracts for purchase or lease of
materials or services authorized by this Charter shall be
consummated by competitive bidding, and each such contract shall be
awarded to the lowest responsible bidder who submits a responsive
bid, provided, however, that competitive bidding shall not be
required where:
the aggregate amount involved is not more than $2,500.00;
the contract is for any service to be rendered by the
State of Delaware, or by any political subdivision thereof;
the contract Is for any service to be rendered by a
university, college, or other educational institution;
the contract Is for property or services for which it Is
impractical to obtain competitive bids;
the Town Council determines that due to an emergency or
special exigency, the time required for competitive bidding is
inadequate; or
the Town Council determines that the bids received were:
unreasonable as to all or part of the requirement; or
were not independently reached in open competition.
7.8 Vacancies. Forfeiture of Office.
7.8.1 Vacancies. The office of a Town Council member shall become
vacant upon death, incapacitation, resignation or forfeiture of
such office.
7.8.2 forfeiture Proceedings. A forfeiture of such office shall
occur when any Town Council member:
is no longer qualified to hold such office;
willfully violates any provision of this Charter;
is convicted of any felony or crime involving moral
turpitude; or
fails to attend three (3) consecutive regular Town Council
meetings without being excused by Town Council vote.
7.8.3 Determination Concerning Forfeiture. Where the conditions
set forth In Sec. 7.8.2 (c) or (d) occur, forfeiture shall be
automatic. Where the conditions set forth in Sec. 7.8.2 (a) or (b)
are alleged, forfeiture shall be approved by the remaining Town
Council members. Such decision shall be made in executive session
and if the Town Council determines by a majority vote that a
forfeiture has occurred, it shall, within forty-eight (48) hours
thereafter, provide written notice thereof to the affected Town
Council member, by certified mail, return receipt requested,
sufficiently posted. "Written notice" shall be deemed provided when
deposited in first-class mail with sufficient postage. The
affected member shall be entitled to a hearing and shall then have
thirty (30) days In which to make a written request for a public
hearing before the Town Council, to be held within forty-five (45)
days of the written request, at which hearing such member may
appear with the assistance of counsel and present evidence to the
relevant issues. The Town Council shall also hear any other
relevant evidence and vote again on the question of forfeiture. A
determination of forfeiture shall be made only by unanimous vote of
the Town Council members present and entitled to vote on the
question.
7.8.4 Failure ta__ROBUest Hearing as a Bar. Failure of the
affected member to make written request for a public hearing as
herehabove stated shall be an absolute bar to his or her right to
challenge the Town Council's decision. If a public hearing is
held, the Town Council shall have authority to subpoena witnesses,
administer oaths, take testimony, and require the production of
documentary or physical evidence, all of which shall be done if
requested in writing by the affected person.
7.9 Filling Vacancies. A vacancy in the office of t

1
LAWS
OF THE
STATE OF DELAWARE
ONE HUNDRED AND THIRTY- SEVENTH
GENERAL ASSEMBLY
FIRST SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 7, A. D.
1993
SECOND SESSION COMMENCED AND HELD AT DOVER
On Tuesday, January 11, A. D.
1994
VOLUME LXIX
Part II